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FILED

United States Court of Appeals


Tenth Circuit

December 11, 2009


UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,


Plaintiff-Appellee,
v.
WILLIAM MORRISON, a/k/a Marco
Tyler,

No. 09-3243
(D.C. No. 2:06-CR-20099-CM-2)
(D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY, LUCERO, and OBRIEN, Circuit Judges.

Defendant William Morrison entered a guilty plea to one count of wire


fraud and one count of money laundering. His plea agreement included a waiver
of his right to appeal any matter in connection with his sentence. Mr. Morrison
has now filed an appeal seeking to challenge the district courts denial of his
motion to continue his sentencing hearing and other matters related to the

This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.

sentencing hearing. The government has moved to enforce the appeal waiver in
Mr. Morrisons plea agreement pursuant to our decision in United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the motion and
dismiss the appeal.
I. Background
The issues in this appeal arose out of the sentencing proceedings in the
district court after Mr. Morrison entered into the plea agreement and entered his
guilty plea at his change-of-plea hearing. Mr. Morrisons sentencing hearing was
initially scheduled to take place on June 23, 2009. His attorney moved for two
continuances of the hearing and it was ultimately rescheduled for the end of
August. On July 9, a preliminary presentence report (PSR) was prepared and
disclosed to Mr. Morrisons counsel. Mr. Morrison did not file any objections,
and, on August 13, the final PSR was filed. That same day, after the final PSR
had been filed, Mr. Morrison filed objections to the preliminary PSR without
giving any explanation for their untimely filing.
On Monday, August 17, Mr. Morrison moved to continue his sentencing
hearing, which was scheduled for August 21. In that motion, Mr. Morrisons
counsel explained that, although he had prepared objections to the preliminary
PSR on July 25, he had mistakenly failed to timely file them. On August 19, the
district court denied the motion. Later that day, the government filed its response
to Mr. Morrisons objections. Mr. Morrison then filed another motion to continue
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the sentencing hearing, arguing it would violate his rights under Fed. R. Crim. P.
32(g) to proceed to sentencing so soon after he filed his objections to the PSR.
The government opposed the continuance, asserting Mr. Morrison had neither
sought nor received leave of court to file his objections out of time. The
government further stated it had already responded to the objections, the response
did not contain any new information or arguments that would not have been
anticipated by the defense, and Mr. Morrison could establish no prejudice from
proceeding with sentencing as scheduled.
At the hearing on August 21, the district court first addressed
Mr. Morrisons pending motion to continue his sentencing hearing. The court
stated it considered the PSR filed on August 13 to be the final PSR, the disclosure
of the report fulfilled the requirements of Rule 32, Mr. Morrison received a copy
of it, and he could not rely on his own failure to file timely objections to claim
error in the sentencing proceedings. The court further stated that, although
Mr. Morrisons objections were untimely, it would consider them. The court then
denied Mr. Morrisons motion for a continuance.
After the courts ruling, Mr. Morrisons counsel indicated his intent to not
have his client participate in the sentencing hearing. The court then spoke to
Mr. Morrison directly. Mr. Morrison acknowledged he had reviewed the
preliminary version of the PSR, had discussed possible objections with his
counsel, and it was his decision (based on the advice of counsel) to not participate
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in the sentencing hearing. After that discussion, the hearing proceeded with the
governments evidence and arguments with regard to sentencing Mr. Morrison.
At the conclusion of the hearing, the court ruled on Mr. Morrisons previously
filed objections. The court then sentenced Mr. Morrison to 100 months on each
count, to be served concurrently; this sentence was at the low end of the advisory
guideline range. Mr. Morrison filed an appeal, challenging his sentencing
proceedings, and the government filed a motion to enforce the appellate waiver in
Mr. Morrisons plea agreement.
II. Discussion
In determining whether an appeal should be dismissed based on an appeal
waiver, we consider (1) whether the disputed appeal falls within the scope of the
waiver of appellate rights; (2) whether the defendant knowingly and voluntarily
waived his appellate rights; and (3) whether enforcing the waiver would result in
a miscarriage of justice. Hahn, 359 F.3d at 1325. Mr. Morrison argues his
appeal is outside of the scope of his appeal waiver, his waiver was not knowing
and voluntary, and enforcing the waiver would result in a miscarriage of justice.
A. Scope
Mr. Morrison asserts he is not challenging the substantive reasonableness
of his sentence, but rather the procedures that were followed with respect to his
sentencing. He contends he did not waive his right to challenge the findings in
his PSR. But Mr. Morrison did have the opportunity to challenge the findings in
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his PSR and those objections were considered by the district court. Morever, the
scope of Mr. Morrisons waiver includes any matter in connection with . . . [his]
sentence. Mot. to Enforce, Attach. at A10 (plea agreement) (emphasis added).
Because Mr. Morrisons appeal presents a challenge to a matter in connection
with his sentence, his appeal falls within the scope of his appellate waiver.
B. Knowing and Voluntary
Mr. Morrison next argues his appellate waiver was not knowing and
voluntary because he agreed to plead guilty under the terms of the plea agreement
based on his understanding that he would be able to challenge the findings in the
PSR. Because he claims he was not afforded that opportunity, he contends his
waiver was not knowing and voluntary.
When determining whether a waiver of appellate rights is knowing and
voluntary, we especially look to two factors. First, we examine whether the
language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily. Second, we look for an adequate Federal Rule of
Criminal Procedure 11 colloquy. Hahn, 359 F.3d at 1325 (citation omitted).
Mr. Morrison does not appear to challenge the language in his plea agreement,
which expressly states, [t]he defendant acknowledges that he is entering into this
agreement and is pleading guilty because the defendant is guilty and is doing so
freely and voluntarily. Mot. to Enforce, Attach. at A11-A12 (plea agreement).

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Rather, Mr. Morrison seems to be suggesting that an error occurred during his
plea colloquy.
Early in his change-of-plea hearing, before the courts discussion with
Mr. Morrison about his appellate waiver, the district court was explaining the
process by which the court would determine his sentence. As part of this, the
district court discussed the sentencing guidelines, noting that the court would not
be able to make a determination about Mr. Morrisons sentence until after the
presentence investigation report was prepared, and the government and
Mr. Morrison had an opportunity to challenge the facts as reported by the
probation office. Id. at A31 (transcript of change-of-plea hearing). The court
then asked Mr. Morrison if he understood he had the right to make such a
challenge and Mr. Morrison responded that he did.
Later in the hearing, the district court reviewed the language in the plea
agreement that discussed the waiver of Mr. Morrisons right to appeal or
collaterally attack any matter in connection with his prosecution, conviction, or
sentence. Id. at A40-42. Mr. Morrison acknowledged that he understood this
waiver provision in his plea agreement, id. at A40-41, and that no one coerced or
threatened him to enter into the agreement, id. at A41-42.
But Mr. Morrison contends he only entered a guilty plea because he was
assured by the court he would be able to object to the PSR. Resp. to Mot. to
Enforce at 12-13. And he now claims his appellate waiver was not knowing and
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voluntary because he was not given the opportunity to make such a challenge.
First, the district court accurately relayed to Mr. Morrison that he would be given
the opportunity to object to the factual findings in the PSR. And, as a factual
matter, the record reflects that Mr. Morrison was given the opportunity to
challenge the PSR because his counsel filed objections and the district court
considered the objections, even though they were untimely. Mot. to Enforce,
Attach. at A203-211 (transcript of sentencing hearing).
Second, Mr. Morrison relies on United States v. Wilken, 498 F.3d 1160
(10th Cir. 2007) to support his argument that his waiver was not knowing and
voluntary, but in Wilken, the district courts explanation of the waiver differed
substantially from that in the written plea agreement, id. at 1167. Because this
created ambiguity as to the scope of the defendants waiver, we held the waiver
was not knowing and voluntary. See id. at 1168-69. Here, unlike the court in
Wilken, the district court did not inject any ambiguity during the plea colloquy
about the scope of the waiver contained in Mr. Morrisons plea agreement.
Accordingly, we conclude Mr. Morrisons waiver was knowing and voluntary.
C. Miscarriage of Justice
Finally, Mr. Morrison asserts the appeal waiver in his plea agreement
should not be enforced because it would result in a miscarriage of justice. An
appeal waiver results in a miscarriage of justice where: (1) the district court
relied on an impermissible factor such as race; (2) ineffective assistance of
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counsel in connection with the negotiation of the waiver renders the waiver
invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is
otherwise unlawful. Hahn, 359 F.3d at 1327 (quotation omitted).
Mr. Morrison contends his waiver is otherwise unlawful. Id. In order to
meet his burden on this factor, see United States v. Anderson, 374 F.3d 955, 959
(10th Cir. 2004), the error [must] seriously affect[] the fairness, integrity or
public reputation of [the] judicial proceedings. Hahn, 359 F.3d at 1327 (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)). Mr. Morrison argues the
appeal waiver should not be enforced because the court failed to follow the proper
procedure when sentencing him and this error affected the outcome of his
sentencing proceedings, citing to Olano, 507 U.S. at 734.
We disagree with Mr. Morrisons characterization of the district court
proceedings. As the government aptly stated:
The defendant should not be permitted to deprive the government of
the benefit of the bargain simply by filing his objections late and
then refusing to participate in the sentencing hearing.
Indeed, the only adverse affect on the fairness, integrity, or
public reputation of judicial proceedings would be if this Court
allows the defendant to avoid the effect of his waiver by creating
error and then benefitting from it.
Mot. to Enforce at 18. We conclude Mr. Morrison has not demonstrated that
enforcing his appeal waiver would result in a miscarriage of justice.

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Finally, we note the government suggested that [t]here will be a time and a
place to address errors by [Mr. Morrisons] counsel, but this is not it. Id.
Although not specifically cited by the government, this reference is presumably to
our decision in United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.
2001), in which we held that a plea agreement waiver of postconviction rights
does not waive the right to bring a [28 U.S.C.] 2255 petition based on
ineffective assistance of counsel claims challenging the validity of the plea or
waiver. And we further note Mr. Morrisons plea agreement contained an
express reference to Cockerham, stating he was waiving his right to bring a
2255 petition, except as limited by United States v. Cockerham, 237 F.3d
1179, 1187 (10th Cir. 2001). Mot. to Enforce, Attach. at A10.
III. Conclusion
Accordingly, because the issues in this appeal are within the scope of the
appeal waiver, Mr. Morrisons waiver was knowing and voluntary, and enforcing
the waiver would not result in a miscarriage of justice, we GRANT the
governments motion to enforce the appeal waiver and DISMISS the appeal.

ENTERED FOR THE COURT


PER CURIAM

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